272 F.3d 168 (3rd Cir.

2001)

RHONDA GOTTLIEB, BY AND THROUGH HER

GUARDIAN AND PARENT, MARY CALABRIA,
APPELLANT
v.
LAUREL HIGHLANDS SCHOOL DISTRICT; MICHAEL
CARBONARA
No. 00-3422

UNITED STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT
Argued May 2, 2001
November 15, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF PENNSYLVANIA (D.C. No. 98-CV-01013)
District Judge: The Honorable Donald J. Lee[Copyrighted Material
Omitted]
Peter M. Suwak, Esq. (Argued), P.O. Box 1, Pete's Surplus Building,
Washington, PA 15301, for Appellant.
Daniel F. LaCava, Esq. (Argued), 850 Washington Avenue, Carnegie, PA
15106, for Appellee,
Before: Mansmann, Nygaard, and Rosenn, Circuit Judges.
OPINION OF THE COURT
Nygaard, Circuit Judge.

The District Court granted summary judgment in favor of Laurel Highlands

School District and its assistant principal, Michael Carbonara, on a student,
Rhonda Gottlieb's, excessive force claims under 42 U.S.C. S 1983. Gottlieb
filed her S 1983 suit in the Fayette County Court of Common Pleas along with
a state assault and battery claim. The matter was then removed to the District
Court for the Western District of Pennsylvania and referred to a Magistrate

Judge. Appellees filed a Motion for Summary Judgment, which the Magistrate
Judge recommended be granted. The District Court agreed and granted the
motion on the S 1983 claims. The assault and battery claim was remanded to
the Fayette County Court of Common Pleas. Appellant Gottlieb contends on
appeal that there remain issues of material fact with respect to appellee
Carbonara, and facts ignored by the District Court, which would establish
"municipal liability" with respect to her claims against the School District. We
will affirm the District Court.
I. BACKGROUND
2

On or about February 9, 1996, Rhonda Gottlieb, then a junior at Laurel

Highlands Public High School, entered the school with the intention of
confronting another female student, Leah Saluga, about her relationship with
Gottlieb's ex-boyfriend. Gottlieb was a disruptive student with a lengthy
disciplinary record at the school. On this day she arrived late and apparently did
not plan on attending classes. Upon her arrival, Gottlieb proceeded directly to
Saluga's classroom. The two argued without physically engaging each other,
and a school security officer arrived. The security officer instructed Gottlieb to
leave the building, but Gottlieb disobeyed and continued to threaten Saluga.
The security officer then escorted Gottlieb to the principal's office.

Gottlieb stood in the doorway of assistant principal Michael Carbonara's office

while he spoke with a teacher. Carbonara then allegedly began yelling at
Gottlieb and spoke a few words to another principal, Robert Raho. Raho then
told Gottlieb that he had just been on the phone with Gottlieb's mother and that
Gottlieb was not allowed in school until a parent-teacher conference took place.
According to Gottlieb, Carbonara then told her to"shut up, because he didn't
want to hear nothing [sic][s]he had to say" and pushed her shoulder with his
hand, propelling her backwards into a door jam. As a result of this contact,
Gottlieb's lower back struck the door jam. Gottlieb described the encounter in
her deposition:

Q: Were you caused to fall to the floor from this being pushed?

A: No. Its [sic] not like he pushed me to try to knock me out or anything. He
didn't! its [sic] not like he like hauled off [and] like cold-cocked me to knock
me out. It wasn't like that. He was just in a fit of rage, and he was mad. And he
was yelling, and it happened.

Q: Is it your belief that Mr. Carbonara intended to force you into the doorjamb?

A: No. Why would he just all of a sudden hit me? I never did nothing to the
man.

Q: Is it your belief that Mr. Carbonara intended to hurt you at all?

A: No, I just think he was mad, and he didn't know what he was doing.

10

Q: And do you know why he was mad?

11

A: Probably because I was up there acting like an immature kid at the high
school. I shouldn't have been there, and I went there.

12

Gottlieb alleges that she suffers chronic back pain and cramping as a result of
this impact. She has been treated by several doctors and chiropractors for the
injury. She has been advised to avoid strenuous activities involving her back,
and she has not been able to perform various jobs or participate in some leisure
activities.

13

Carbonara was earlier involved in a physical altercation with an opposing

football coach, and Gottlieb therefore argues that the School District is liable
because of its failure to address the risk Carbonara posed to students.
II. DISCUSSION

14

A. Gottlieb's S 1983 Claim Against Carbonara

15

i) The Specific Constitutional Right Allegedly Infringed

16

We first must "identify[ ] the specific constitutional right allegedly infringed"

and determine if Gottlieb's claim should be reviewed under the Fourth, Fifth, or
Fourteenth Amendment. Graham v. Connor, 490 U.S. 386, 394, 109 S. Ct.
1865, 1870 (1989). Because different standards attach to the various rights,
identifying the proper constitutional approach is essential. Here, the difference
between reviewing Carbonara's actions under the reasonableness standard of
the Fourth Amendment or the shocks the conscience standard of the Fourteenth
Amendment may be determinative. See County of Sacramento v. Lewis, 523
U.S. 833, 118 S.Ct. 1708 (1998); Fagan v. City of Vineland, 22 F.3d 1296,
1303 (3d Cir. 1994) (en banc).

17

Because the Fourth Amendment invokes the less stringent reasonableness

standard, Gottlieb argues that Carbonara's push amounts to a seizure effectuated

by a government actor who "by means of physical force or show of authority,...
in some way restrain[ed] the liberty of a citizen." Graham, 490 U.S. at 395
n.10. The Fourth Amendment's prohibition against unreasonable seizures,
however, does not properly cover Gottlieb's alleged injury. Courts have
recognized that public schools are in a "unique constitutional position," because
"[o]nce under the control of the school, students' movement and location are
subject to the ordering and direction of teachers and administrators." Wallace
by Wallace v. Batavia Sch. Dist. 101, 68 F.3d 1010, 1013 (7th Cir. 1995); see
also Vernonia Sch. Dist. 47 J v. Acton, 515 U.S. 646, 655, 115 S. Ct. 2386,
2392 (1995) (students are lawfully subject to a level of restraint that would be
unacceptable if "exercised over free adults."). The Fourth Amendment's
"principal concern... is with intrusions on privacy," and therefore when the
infraction deals not "with the initial decision to detain an accused and the
curtailment of liberty that such a decision necessarily entails, but rather with the
conditions of ongoing custody following such curtailment of liberty," then the
claim invokes principles of substantive due process. Ingraham, 430 U.S. at 674,
97 S. Ct. at 1401 (citation omitted). Gottlieb did not experience the type of
detention or physical restraint that we require to effectuate a seizure. As the
District Court for the Middle District of Pennsylvania correctly stated, the
"momentary use of physical force by a teacher in reaction to a disruptive or
unruly student does not effect a `seizure' of the student under the Fourth
Amendment," and therefore "is a scenario to which the Fourth Amendment
does not textually or historically apply." Kurilla by Kurilla v. Callahan, 68 F.
Supp. 2d 556, 563 (M.D. Pa. 1999).
18

Gottlieb's action is a claim of excessive force, not of unreasonable detention. In

our leading case reviewing corporal punishment in public schools under S
1983, Metzger v. Osbeck, 841 F.2d 518, 520 (3d Cir. 1988), we did not
explicitly adopt the shocks the conscious standard, but rather did so impliedly,
stating that the offending conduct must be inspired by malice or sadism. This
led Judge Weis to state in his dissent that the majority had "apparently adopted"
the shocks the conscience standard. Metzger, 841 F.2d at 522 (Weis, J.,
dissenting). We agree and take this opportunity to clarify the standard we
adopted in Metzger, applying the Fourteenth Amendment's shocks the
conscience standard to federal claims alleging the use of excessive force by
public school officials. Accord, Johnson by Johnson v. Newburgh Enlarged
Sch. Dist., 239 F.3d 246 (2d Cir. 2001); Neal by Neal v. Fulton County Bd. of
Educ., 229 F.3d 1069 (11th Cir. 2000); Lillard v. Shelby County Bd. of Educ.,
76 F.3d 716 (6th Cir. 1996); Wise v. Pea Ridge Sch. Dist., 855 F.2d 560 (6th
Cir. 1988); Garcia by Garcia v. Miera, 817 F.2d 650 (10th Cir. 1987); Webb v.
McCullough, 828 F.2d 1151 (6th Cir. 1987).

19

ii) Application of the Shocks the Conscience Standard

20

The substantive component of the Due Process Clause "protects individual

liberty against `certain government actions regardless of the fairness of the
procedures used to implement them.' " Collins v. Harker Heights, 503 U.S. 115,
125, 112 S. Ct. 1061, 1068 (1992) (quoting Daniels v. Williams, 474 U.S. 327,
331, 106 S. Ct. 662, 665 (1986)). "[T]he substantive component of the due
process clause is violated by [state conduct] when it can properly be
characterized as arbitrary, or conscience shocking, in a constitutional sense."
County of Sacramento, 523 U.S. at 847, 118 S. Ct. at 1717 (citation omitted).
Thus, "conduct intended to injure in some way unjustifiable by any government
interest is the sort of official action most likely to rise to the conscienceshocking level." Id. at 849, 118 S. Ct. at 1718.

21

In Metzger, 841 F.2d at 520, we cited Johnson v. Glick, 481 F.2d 1028, 1033
(2d Cir. 1973), for the standard to evaluate excessive force claims:

22

In determining whether the constitutional line has been crossed, a court must
look to such factors as the need for the application of force, the relationship
between the need and the amount of force that was used, the extent of injury
inflicted, and whether force was applied in a good faith effort to maintain or
restore discipline or maliciously and sadistically for the very purpose of
causing harm.

23

The Fourth Circuit refined the Glick criterion in Hall v. Tawney, 621 F.2d 607,
613 (4th Cir. 1980). Hall now provides the most commonly cited test for claims
of excessive force in public schools:

24

As in the cognate police brutality cases, the substantive due process inquiry in
school corporal punishment cases must be whether the force applied caused
injury so severe, was so disproportionate to the need presented, and was so
inspired by malice or sadism rather than a merely careless or unwise excess of
zeal that it amounted to a brutal and inhumane abuse of official power literally
shocking to the conscience. Not every violation of state tort and criminal
assault laws will be a violation of this constitutional right, but some of course
may.

25

Hall, 621 F.2d at 613 (citation omitted).

26

The Glick and Hall standard has been adopted with slight variations by several
Courts of Appeals. See Johnson, 239 F.3d at 251-52 ("[I]n determining whether

the constitutional line has been crossed," the Court must consider "the need for
the application of force, the relationship between the need and the amount of
force that was used, the extent of injury inflicted, and whether force was
applied in a good faith effort to maintain or restore discipline or maliciously
and sadistically for the very purpose of causing harm."); Neal, 229 F.3d at 1075
("[E]xcessive corporal punishment... may be actionable under the Due Process
Clause when it is tantamount to arbitrary, egregious, and conscience-shocking
behavior.... [T]he plaintiff must allege facts demonstrating that (1) a school
official intentionally used an amount of force that was obviously excessive
under the circumstances, and (2) the force used presented a reasonably
foreseeable risk of serious bodily injury."); P.B. v. Koch, 96 F.3d 1298 (9th
Cir. 1996); Wise, 855 F.2d at 563 ("[A] substantive due process claim in the
context of disciplinary corporal punishment is to be considered under the
following test: 1) the need for the application of corporal punishment; 2) the
relationship between the need and the amount of punishment administered; 3)
the extent of injury inflicted; and 4) whether the punishment was administered
in a good faith effort to maintain discipline or maliciously and sadistically for
the very purpose of causing harm.").
27

To avoid conflating the various elements of the shocks the conscience test into
a vague impressionistic standard, we analyze its four elements in turn: a) Was
there a pedagogical justification for the use of force?; b) Was the force utilized
excessive to meet the legitimate objective in this situation?; c) Was the force
applied in a good faith effort to maintain or restore discipline or maliciously
and sadistically for the very purpose of causing harm?; and d) Was there a
serious injury?

28

The first question is whether there was a pedagogical justification for

Carbonara's use of force. Corporal punishment in schools typically refers to the
application of physical force by a teacher or administrator to punish a student
for some type of school-related misconduct. See Ingraham, 430 U.S. at 661, 97
S. Ct. at 1407. The most common application of physical force involves the
formal administration of paddlings or other predesignated physical punishment.
See Saylor v. Board of Educ., 118 F.3d 507, 511 (6th Cir. 1997); Fee v.
Herndon, 900 F.2d 804, 806 (5th Cir. 1990); Wise, 855 F.2d at 562; Garcia,
817 F.2d at 653; Hall, 621 F.2d at 609. Informal physical confrontations have
also been considered corporal punishment. See Neal, 229 F.3d at 1060 (coach's
striking student in face with a metal weight and destroying his eye considered
corporal punishment); London v. Directors of DeWitt Pub. Schs., 194 F.3d 873,
875 (8th Cir. 1999) (school official's dragging student across room and banging
student's head against a metal pole described as corporal punishment); P.B., 96
F.3d at 1300 (principal's hitting, grabbing, and pushing of several students

actionable as a constitutional violation); Metzger, 841 F.2d at 518 (school

official's placing student in choke hold and causing student to lose
consciousness and fall to the pavement resulting in a broken nose and fractured
teeth analyzed under corporal punishment framework). In such cases where a
school official grabs a student to break up a fight, chokes a student when
hearing him curse, or paddles a student for misbehaving, the reason that the
administrator resorts to force is evident. At the very least, the force must be
capable of being construed as an attempt to serve pedagogical objectives.
29

Here it is unclear what pedagogical objective Carbonara's alleged push might

have served. Although insubordinate earlier, Gottlieb stood in Carbonara's
doorway obediently. Gottlieb was informed that she was not allowed in school
until after a parent-teacher conference took place. There appears at this point to
have been no reason for Carbonara to physically discipline Gottlieb, and he has
not offered any justification for the alleged act. As the Fifth Circuit Court of
Appeals has stated, "[c]orporal punishment rises to the level of a constitutional
deprivation only when it is arbitrary, capricious, or wholly unrelated to the
legitimate state goal of maintaining an atmosphere conducive to learning."
Woodard v. Los Fresnos Indep. Sch. Dist., 732 F.2d 1243, 1246 (5th Cir.
1984). Carbonara has not yet offered any justification for his use of force, and it
is thus possible that a reasonable jury could find that there was no justifiable
need for any use of force against Gottlieb. Carbonara's push could be found to
be a rash, irrational, and needless abuse of his authority. Consequently, it is
inappropriate to presume in his favor on this point and in the context of
summary judgment.

30

The second question is whether the force Carbonara utilized was excessive to
accomplish the legitimate objective in this situation. Because we have
concluded that there was no need for Carbonara to use force at all, excessivity
is simply not an issue. Carbonara's use of force may not have been in service of
any pedagogical objective, but rather could have been an unwarranted fit of
"rage" (as Gottlieb described it in her deposition). Hence, summary judgment is
inappropriate on this prong of the test. As the Supreme Court stated in Sandin v.
Connor, "[a]lthough children sent to public school are lawfully confined to the
classroom, arbitrary corporal punishment represents an invasion of personal
security to which their parents do not consent when entrusting the educational
mission to the State." 515 U.S. 472, 485, 115 S. Ct. 2293, 2300-01 (1995). In
this respect, school officials risk federal constitutional liability claims if they
subject their students to force that does not serve any appropriate pedagogical
objective.

31

The third question is whether the force applied by Carbonara "was applied in a

31

good faith effort to maintain or restore discipline or maliciously and sadistically

for the very purpose of causing harm." Metzger, 841 F.2d at 520 (quoting
Glick, 481 F.2d at 1033). In essence, we are asked to examine what animated
Carbonara's action or his intent in acting. There are three possibilities: 1)
Carbonara did not intend to push Gottlieb or cause her injury, and therefore the
contact was accidental; 2) Carbonara intended to push Gottlieb but not to cause
her injury, and therefore the injury was accidental; 3) Carbonara intended to
push Gottlieb and cause her injury. Because a constitutional violation will only
arise if Carbonara's actions were malicious and sadistic, it is the harm, and not
the contact, that must be intended.1 Therefore only the third possibility can
sustain her claim.

32

In Metzger, we reasoned that the teacher's statement that he did not intend to
harm the student, by itself, was not enough to establish conclusively that the
teacher did not intend to harm the student by placing him in a choke hold.
Metzger, 841 F.2d at 520-21. We reasoned that the teacher's position as a
physical education instructor and wrestling coach may make him aware of the
risks in restraining the student. Id. Since the Metzger court found contradictory
evidence of what the teacher intended, summary judgment was inappropriate on
the facts presented. Here, unlike Metzger, we are faced with a different scenario
because of the slight nature of the push and Gottlieb's own testimony. First,
Carbonara did nothing more than place his hand on Gottlieb's shoulder and
push her back inches to the door jamb. The push itself was so minor that even if
the injuries she alleges occurred, it cannot be inferred from the act itself that
Carbonara intended to act maliciously and sadistically so as to constitute a
constitutional violation. A slight push is very different than the choke hold
applied in Metzger. Second, in her deposition Gottlieb explicitly stated that she
believed that Carbonara did not intend to injure her. (See opinion p. 170, supra).

33

Thus, Carbonara's conduct, although possibly tortious, does not give Gottlieb a
constitutional cause of action. Carbonara's placing his hand on a student's
shoulders and moving her mere inches is not "a brutal and inhumane abuse of
official power literally shocking to the conscience."2 Hall v. Tawney, 621 F.2d
at 613. Applying the summary judgment standard, we conclude that no
reasonable jury could find that Carbonara intended to harm Gottlieb. Therefore,
his actions do not rise to the level of a constitutional violation.

34

B. Gottlieb's S 1983 Claim Against the School District

35

Gottlieb claims that Carbonara's previous altercation with an opposing football

coach was handled by school administration in such a way as to constitute
deliberate indifference to physical abuse of students generally, and created a

policy, practice, or custom that caused her injury specifically. We do not agree.
36

We have recognized that a municipality will be liable for the constitutional

violations of a state actor if it acts "with deliberate indifference to the
consequences [and] established and maintained a policy, practice or custom
which directly caused constitutional harm." Stoneking v. Bradford Area Sch.
Dist., 882 F.2d 720, 725 (3d Cir. 1989) (emphasis added). Gottlieb has failed to
allege a direct casual connection between any such practice and her injury. See
Losch v. Borough of Parkesburg, Pa., 736 F.2d 903 (3d Cir. 1984). This causal
connection can be established by alleging "that policymakers were aware of
similar conduct in the past, but failed to take precautions against future
violations, and that this failure, at least in part, led to their injury." Id. at 910.
The previous conduct is not sufficiently similar to draw a direct causal
connection to Gottlieb's injury.

37

Because Gottlieb has not alleged sufficient facts to establish causation, we need
not consider whether the School District acted with deliberate indifference and
established and maintained an unconstitutional policy, practice, or custom. The
District Court therefore did not err in granting summary judgment against
Gottlieb's S 1983 claim against the School District.
III. CONCLUSION

38

In sum, we conclude that there are no material issues of fact that would
preclude granting summary judgment in favor of Carbonara, and that the
District Court properly concluded that Gottlieb's pleading was insufficient to
establish a cause of action against the School District. We will affirm the
summary judgment in all respects.

NOTES:
1

The use of the term "sadistic" in this standard is something of a misnomer.

Precedent does not require that the alleged offender take pleasure or satisfaction
from the injury, as the term entails, but rather only that the offender intended
harm. The requirement that the act be sadistic, therefore, adds nothing to the
requirement that it be malicious. See BLACK'S LAW DICTIONARY 956-58
(6th ed. 1990).

We base our conclusion on Carbonara's lack of intent to injure Gottlieb, and

therefore do not need to determine whether the alleged injury was sufficient to

support a constitutional claim.